Aspects of Contract and Negligence - Essay Example

?Aspects of Contract and Negligence Case Lunch at Chez Chackos Standard of Proof and Burden Of Proof in both Civil and Criminal Proceedings In most criminal and civil cases, there are varying standards of proof. In criminal cases, there are presumptions of innocence; therefore, the burden of proof rests with the prosecution. In criminal cases, the standard of proof is guilt beyond reasonable doubt. In civil cases, standard of proof rests on the balance of probabilities, that is, the defendant was probably liable that not liable. The burden of proof in criminal cases falls on the claimant (FindLaw 2012, p1). The Facts of Donoghue and Stevenson, and the Importance of This Judicial Precedent It is a civil action between two people (Mrs May Donoghue v. David Stevenson). It is important to state that it is not a criminal prosecution. On 26 August 1928, Mrs Donoghue was bought a drink by her friend at the Wellmeadow Cafe in Paisley. She consumed a portion of ginger beer, which contained an ice-cream float. All was well up to this point. However, when the other portion of the bottle was emptied into her glass, something that seemed to be decomposing remains of a snail floated out. The incident made Mrs Donoghue to feel unwell. Mrs Donoghue sued David Stevenson (the manufacturer of the ginger beer) (Scottish Council of Law Reporting 2008, p1). This judicial precedent was of great importance since it was decided by a jury. Most of the civil cases are decided by a judge without the involvement of a jury (Scottish Council of Law Reporting 2008, p1). What Has To Be Proved In Civil Action In Negligence And By Whom? A cause of action is a set of facts that establishes a right or claim to sue in the United Kingdom law. A cause of action justifies the commencement of legal proceedings. There are various causes of action. Each action requires certain elements to be proved by the claimant if he or she has to win the case. All the elements of cause of action must be thoroughly explained in the claim with supporting law and facts. The application of the facts based on the law must result in a logical decision and a claim for proper remedy. In civil litigation, the components of each cause of action have to be proved based on the balance of probabilities. A cause of action can emerge from an omission or act, violation of individual rights, failure to execute legal obligation or a breach of duty. All these have to be proved by the claimant in civil action in negligence. The circumstances or facts can cause an individual to seek legal remedy. For instance, in all cases of negligence, the following elements of cause of action must be considered duty of care, breach of duty, and causation (FindLaw 2012, p1). How Compensation Can Be sought For the Distress Suffered and Loss of Earnings Compensation for damage caused by professional negligence or a breach of contract is usually difficult to deal with especially for the innocent party. In other words, it is difficult for the claimant to be compensated for the distressed suffered and loss of earnings. Decisions made by courts do not award compensation for distress, inconvenience, or anxiety. This is because if they permitted a claim for stress in the simple cases, it would probably open doors for more litigation. However, there are exceptions if the contrary outcome is procured. The objectives of each contract is to offer relaxation, free from molestation, peace of mind or pleasure, thus, damages can be awarded if one or all of the mentioned objectives are not met (Pro Neg 2011, p1). The Lord Atkins’s neighbour principles are applicable in this case. According to the principle, the rule to love the neighbour in law is translated to indicate that the neighbour must not be injured. An individual must be very careful to avoid omissions or acts that can probably injure the neighbour. In law, a neighbour is someone who is directly and closely influenced by the actions of another individual (Chan 2011, p9). Thus, the claimant can seek compensation for distress and loss suffered because the defendant failed to act like a good neighbour. Strict Liability Strict liability can be defined as a legal doctrine that refers to absolute legal responsibility for injury that can be enforced on the defendant without proving fault or carelessness (Jeffrey Meldon Associates 2012, p1). In some cases, the law levies strict liability on the defendant if the prosecution or claimant is capable of proving particular set of facts. This generally occurs in quasi-criminal cases entailing administrative offences like the breach of statutory roles under the health and safety legislation. Strict liability is helpful to a potential claimant in a negligence action because it removes the problem of proving liability (FindLaw 2012, p1). In this case, for instance, the council environmental inspectors can prove that the food consumed was not prepared to the required standards, thus, the restaurant will be liable for poisoning under the food and safety regulations. Case 2: Rareplants Ltd Negligence liability usually lies with the party that is indebted to the duty of care. If a breach of duty occurs and results in personal injury, financial loss or other damages, then the negligent party can be liable to compensate the innocent party. However, there are factors that have to be considered before liability for negligence can be proved. First, the injury must be foreseeable, that is, a reasonable individual would have seen the possible damage in the current circumstances. Second, legal proximity must exist, and the close association between the involved parties illustrates this (Contact Law 2010, p1). Rareplant’s Liability With respect To the Elderly and Disabled Residents In this case, Rareplants is liable to the elderly and disabled residents. From the case, it is evident where the resident of residential care home slipped was not marked as safe or unsafe. Negligence liability rests on the party that owes duty of care, and thus, Rareplants is liable for the damage caused to the resident. It is important to note that the elderly individual could not foresee the possible danger on the pathway, and this can be supported by his age. Foreseeability of the injury is one factor that must be proved in the case of negligence liability. Because the resident could not foresee the danger, Rareplants is liable to the elderly and disabled residents. Rareplant’s Liability With respect To the Children Rareplants is not liable to the children despite the fact that they strayed from their mother onto the unfinished landscaping project. As stated before, negligence liability rests on the party that owes duty of care. The children were under the care of their mother and overall, under the care of Rareplants. No damage or injury occurred and thus, Rareplants is not liable for negligence. Instead, the mother is liable for allowing the children to stray onto the unfinished projects. Legal proximity is an important factor in determining negligence liability. There was no legal closeness or proximity between the claimant and the defendant, thus, Rareplants is not liable to the children. The children could not foresee the injury because of their age and little understanding of the apparent danger. Rareplant’s Liability With respect To the Mother Rareplant’s is also not liable to the mother, though she was treated for depressive illness caused by anxiety and distress when the children were lost. This is because the children were under the immediate care of their mother. As indicated before, legal proximity does not exist between Rareplants and the children. Thus, the mother is liable for the distress and anxiety she caused on herself by allowing the children to stray onto the unfinished projects. Rareplants cannot compensate her for the depressive illness because they did not cause distress and anxiety on her. Relevance of Contributory Negligence to the Case Contributory negligence (under the Law Reform [Contributory Negligence] Act 1945) functions as a partial defence in which the court can allocate losses between the parties. It is an attractive option to courts owing to the fact that it is not harsh like the other defences. It offers that where an individual suffers damage partly because of his fault and partly because of another individuals fault, the claim cannot be defeated because of the fault of the individual suffering the damage. Therefore, contributory negligence functions as a partial defence. It is important to note that contributory negligence can function in three party circumstances. However, the courts must assess the extent to which the claimant contributed to his or her own injury (e-laresources.co.uk 2012, p1). Contributory negligence is relevant to the case especially in the case of the mother who suffered depression illness partly because of her negligence. Both Rareplants and the mother had the duty of caring for the children, and each was partly involved in what transpired. Thus, the court may decide that they share the losses. Relevance of Remoteness of Damage to the Case Remoteness of damage is related to need that the damage must be foreseeable. Once the claimant has recognized that the defendant is indebted to duty of care, and has, breached duty, which has led to that damage, the claimant must also indicate that the damage was not remote. Remoteness of damage is usually seen as an extra mechanism for controlling tortious liability. It is worth noting that not each loss is recoverable in tort law (e-laresources.co.uk 2012, p1). Remoteness of damage is relevant to the case. This is so in the case in which the resident fell on the pathway. The damage was not foreseeable because the resident fell in areas, which were not marked as either dangerous or safe. Thus, the damage was not remote, and Rareplants is liable to the elderly and disabled home residents. Case 3: ABC Accountants Ltd Requirements to Satisfy Lucy’s Claim in Negligence The Law of Torts covers various civil wrongs such as defamation, nuisance, negligence, and trespass. Each tort is composed of its own rules concerning liability (Jones 2011, p339). For an individual to be successful in a tortious claim, the claimant is supposed to prove that omission or tortious act caused some damage (Jones 2011, p340). Therefore, Lucy has to prove that the tortious act led to some damage (financial losses). Lucy has entered into a contract and the Law of Contract states that the parties involved enter into the contract voluntarily. In other words, the parties involved have entered into a contract in which the obligations enforced have been agreed upon. For instance, if a professional advice is given carelessly and leads to a loss, the individual (the advisor) can be sued for tort of negligence or breach of contract. The legal time limit for bringing action and compensation in contract cases is generally six years (Jones 2011, p340). Thus, Lucy has to file the case within the legal time limit. Negligence is a crucial tort that covers various types of situation in which individuals negligently cause damage or harm to others. For an individual to be successful in a claim for negligence, it is crucial for the claimant to determine the following three components; first, the defendant indebted the plaintiff a duty of care; second, duty of care was breached by the defendant; and three, the breach of duty caused reasonably foreseeable damage (Jones 2011, p342). These requirements have to be fulfilled to satisfy Lucy’s claim in negligence. Is There A “Special Relationship” Between The Parties? There is a special relationship between the parties. Both entered into a contract in which Lucy was to be offered professional advice on investment. The contract terms are that the advisor will not be liable for any financial loss that will result from the advice given. Application of Candler v. Crane Christmas, and Hedley Byrne v. Heller & Partners to This Case In the Candler’s case, the defendant’s employee recognized that the plaintiff or the claimant was a potential investor in the firm, and that the accounts were prepared negligently. The defendants were liable for their actions because (a) independent of the contract, they owed a duty of care to the plaintiff of which they failed to execute, and (b) they had made careless statements on which the claimant had acted (Property Institute 2009, p23). In Lucy’ case, she was assisted to make a financial decision by one of the company’s employees based on a mutual agreement that he will not be personally liable for the statements he will make. However, Lucy can claim for damages because she acted on careless statements made by the defendant. Although the Candler’s case was dismissed, Lucy can still prove that the defendant owed her duty of care and that she acted on false statements, which led to the financial losses. In the Hedley Byrne & Co Ltd v Heller case, it emerged that in some special situations, “there could be a duty owed in the tort of negligence for financial loss caused through a defendant’s negligent statement” (Jones 2011, p352). For the claim to succeed, the claimant had to show that the financial loss suffered was reasonably foreseeable and there existed a special relationship of proximity between the concerned parties. A duty of care would only emerge if the defendant either impliedly or expressly, took the responsibility to use care in making the statements. The defendant has to possess special judgment and skill, which the claimant depended on. It must also be reasonable that in those circumstances that the claimant relied on the statements given by the defendant. In the Hedley Byrne’s case, financial advice was given and the claimants relied on it (Jones 2011, p352). In Lucy’s case, she relied on the financial advice given by the defendant; thus, she must prove that there was a special relationship between her and the defendant for the claim to succeed. Whether the Context Has a Bearing on the Result of Her Claim The context (when and where the advice was given) is very important in the outcome of her. This is because the context defines the special relationship between her and the defendant. Thus, she has to prove that a special relationship existed between her and the defendant if the claim has to succeed. The Principle of Vicarious Liability The principle of vicarious liability indicates that in the context of a business environment, the employer can be vicarious liable for their employees’ torts (Jones 2011, p339). Based on its description, the principle of vicarious liability is applicable in this case. One of the reasons for vicarious liability is that the employer generates profits from his employee’s activities, and that he should also accept the losses that come with those activities (LawTeacher 2001, p1). Thus, in the case of Lucy according to vicarious liability, the employer should bear the losses that were incurred. References Chan, A. B. (2011) Who then – in law – is my neighbour? Lord Atkins’s ‘neighbour principle’ as an aid for the principled delineation of the boundaries of negligent liability, Thesis (Masters), University of Toronto. Contact Law (2010) Negligence liability [online], Contact Law. Available from: [Accessed 19 June 2012]. e-lawresources.co.uk (2012) Contributory negligence [online]. Available from: [Accessed 19 June 2012]. e-lawresources.co.uk (2012) Remoteness of damage [online]. Available from: [Accessed 19 June 2012]. FindLaw (2012) Burden of proof [online], FindLaw UK. Available from: [Accessed 19 June 2012]. FindLaw (2012) What is a cause of action? [online], FindLaw UK. Available from: [Accessed 19 June 2012]. Jeffrey Meldon Associates (2012) What is strict liability and what does it mean? [online]. Available from: [Accessed 19 June 2012]. Jones, L. (2011) Introduction to business law, Oxford, UK: Oxford University Press. LawTeacher (2001) Vicarious liability [online]. Available from: < http://www.lawteacher.net/PDF/Vicarious%20Liability.pdf> [Accessed 19 June 2012]. Pro Neg (2011) Claiming compensation for distress & inconvenience [online]. Available from: [Accessed 19 June 2012]. Property Institute (2009) Hedley Byrne & Co Ltd v Heller & Partners Ltd [online]. Available from: [Accessed 19 June 2012]. Scottish Council of Law Reporting (2008) Donoghue v Stevenson: The Paisley snail mini trial [online], SCR. Available from: [Accessed 19 June 2012]. Read More